Date: Fri, 1 Feb 2008 12:35

From: David Cheifetz

Subject: Causation and Apportionment of Damages

Dear Colleagues,

I post his on behalf of Martin Hogg. For some some reason the listserv won't take his post. I'm sure para 149 of Lord Uist’s reasons has nothing to do with it. The case can be found here too, in case the link in Martin's post doesn't work. It didn't for me.

Cheers,
DC

----- Forwarded Message ----
From: Martin Hogg
To: DAVID CHEIFETZ
Sent: Friday, February 1, 2008 4:48:48 AM
Subject: Causation and Apportionment of Damages

----------

The helpful citation of Novartis Grimsby v Cookson, a case I had not seen before, reminded me that Novartis have also recently been defenders in a Scottish case concerning the application of Bonnington Castings, namely Wright v Stoddart International plc and Novartis Grimsby Ltd (the opinion of the Outer House of the Court of Session may be found here.

The claim here involved the alleged contraction of asbestosis by the pursuer's late husband. Although contraction of asbestosis was not made out (instead, the deceased was found to have contracted another disease, cryptogenic fibrosing alveolitis, a disease of uncertain aetiology) the judge, Lord Uist, made some obiter remarks as to how he would have apportioned damages against the first defender (the second defender having settled out of court) had asbestosis been made out. The case might have provided an opportunity to move the law to a position of an apportionment of damages in cases of material contribution to a divisible disease, like asbestosis. However Lord Uist would have preferred to maintain the position that, following Bonnington, the defender would be jointly and severally liable for the totality of the deceased's loss, even though the defender had not been the sole material cause of exposure of the deceased to asbestos.

I have criticised this approach, arguing instead that apportionment should be possible in such cases, in the latest edition of the Edinburgh Law Review (see 'Causation and Apportionment of Damages in Cases of Divisible Injury' (2008) Edinburgh Law Review Vol 11, pp 101-106).

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